The story so far: In an election rally in Telangana, Prime Minister Narendra Modi promised to look into the sub-categorisation of Scheduled Castes (SCs) to identify and help the most backward among them — a move that has been read as an attempt by the Bharatiya Janata Party (BJP) to woo the Madiga community. The Madigas are the most populous of all SC communities in the State but have claimed that their share of representation was being taken up by another SC community, the Malas.
Is sub-categorising legal?
In the last two decades, multiple States like Punjab, Bihar, and Tamil Nadu have tried to bring in reservation laws at the State level in a bid to sub-categorise SCs and decide on a separate quantum of reservation for these subcategories within the umbrella of Scheduled Castes. However, all plans are held up in courts as the Supreme Court forms its larger Constitution Bench to decide the matter.
The issue first reached the courts when the Andhra Pradesh government in 1996 formed a one-man Commission of Justice Ramachandra Raju, which recommended sub-categorisation of SCs in the State based on evidence that some communities were more backward and had less representation than others. When the State government tried to implement this recommendation, the matter went to the judiciary, eventually making its way to the Supreme Court, which in 2004, held that the State did not have the power to unilaterally sub-categorise communities in the list of SCs or Scheduled Tribes (STs). The Constitution has provided that these lists can only be made by Parliament and notified by the President.
However, while hearing a challenge to Punjab’s attempt at doing the same, a five-judge Bench headed by Justice Arun Mishra had held in a 2020 judgment, that deciding on the quantum of benefits in the lists of SCs/STs already notified would not amount to “tinkering” with it and that States could do it. Given the contradiction, the 2020 judgment has also been referred to the larger Bench.
How close have governments come?
Even as the question of whether SC sub-categorisation can be done is pending with the Supreme Court, the 2004 judgment had pushed the Union government to explore legal options for the same. It initiated dialogue with the Law Ministry and in 2005, the Attorney-General of India (AGI) had opined that it was possible to sub-categorise SCs. The AGI, at the time, had said that any such classification could be allowed only if there was “unimpeachable evidence to indicate a necessity” for it. The AGI had added that a constitutional amendment could be brought in to facilitate this. Based on this, the Union government formed a National Commission to look into the question of sub-categorising SCs in Andhra Pradesh and the then Cabinet recommended an amendment to Article 341 of the Constitution of India to allow for it. But both the National Commission for Scheduled Castes (NCSC) and the National Commission for Scheduled Tribes (NCST) had opined that a constitutional amendment was not necessary. They said that Article 16(4) of the Constitution already provided for States to create special laws for any backward classes it felt was under-represented.
What have been the arguments?
From the Justice Raju Commission to the National Commission, the principal argument for sub-categorisation of SCs has been the graded inequalities among SC communities. The thrust of it has been that even among the marginalised, there are communities that have lesser access to basic facilities. As a result, the relatively more forward communities among them have managed to avail benefits consistently while crowding the more backward ones out. The solution, therefore is to sub-categorise the communities and provide separate reservation to the more backward communities within the reservation meant for SCs.
However, on the other hand, both the SC and ST Commissions have noted that allotting separate reservations within the categories would not really address the root cause of the problem. In an internal note prepared by the NCST, it had explained that the most backward SCs are lagging so far behind forward SC communities that a separate quota would not help. It said that the idea was to ensure representation at all levels. But given the disparity, even if posts were reserved at higher levels, these most backward SCs would not have enough candidates to be considered for it in the first place. Both the NCSC and the NCST had thus recommended that existing schemes and government benefits should first reach these sections before any sub-categorisation.
What next?
Legal experts have pointed out the necessity to have concrete data to support sub-categorisation. Senior Advocate Mohan Gopal told The Hindu, “There is nothing that prohibits the Parliament from being competent to do this. But what is primarily needed is concrete population numbers of each community and sub-community and their respective socio-economic data, which are the only thing that can provide a reasonable ground to decide how castes can be categorised, how much percentage should be given, etc.”
